Rumsey, J.:
This is a proceeding to determine the right to the custody of the two children of the relator. It was commenced by habeas corpus. A return was made which set up a former adjudication on the subject, made by the Superior Court some three years before the present proceeding was begun. To that return a traverse was filed, and some further proceedings were had which will he referred to subsequently. Thereupon the order appealed from was made, which was, substantially, that the matter was referred to a referee, with directions to take the testimony and report the same to. the judge who made the order.
The first question presented is, whether the order is an appealable one. An examination of that question requires an investigation into the nature of the proceeding. The proceeding in its com[416]*416mencement was by habeas corpus. It was begun by the service of a petition and the issue of a writ as prescribed by the Code of Civil Procedure," and thus far it has proceeded, in all respects, under the provisions of that statute. It has been claimed that the proceeding, in its nature, is not one of habeas corpus, but that the writ- of habeas corpus, having exercised its function by bringing the children, whose detention was being inquired into, before the court, has become functus officio, and that, thereafter, the proceeding is one upon the equity side of the court, not governed by any particular statute. This view, we think, cannot be maintained. The nature of this proceeding for the custody of children has been examined many times. It has been settled law in this State and in England that there is no other proceeding at common law to inquire into the custody of children than that by habeas corpus. The matter was the subject of investigation in The People ex rel. Barry v. Mercein (8 Paige, 47, 55), where a. writ of habeas corpus was sued out before the chancellor. It became necessary for the chancellor, in that case, in determining the question as to what were his powers, with reference to the disposition of the child, to examine into the nature of the proceeding before him. He clearly states that the proceeding is before him only by virtue of his common-law powers as chancellor, and is not one pending upon the equity side of the court. These views were reiterated by him subsequently, when the same question came up between the same parties upon another writ of habeas corpus in Mercein v. People ex rel. Barry (25 Wend. 95). In each of these cases the chancellor evidently desired to find some way in which it would be practicable for him to decide the case presented, upon the rules laid down by the court of equity with regard to the custody df children, but he was prevented from doing so because he was bound by the rules prescribed in such cases in habeas corpus proceedings. The only question which the chancellor made in either .case was, whether or not the court was at liberty to proceed under the common-law system of procedure, or was bound to proceed according to the rules, laid down by the Revised Statutes.
An examination of .the cases will show that the English Court of Chancery only claimed the right to inquire into the custody of children by virtue of the delegated power from the crown as pa/rens patriae, and not- by virtue of any other common-law jurisdiction. [417]*417(DeManneville v. DeManneville, 10 Ves. 63; Butler v. Freeman, Ámbl. 302; Snell’s Principles of Equity, 347.) In Butler v. Freeman (supra) Lord Habdwicke, in examining into the source of the jurisdiction of the Court of Chancery, lays down the rule as above stated, and says that even then the court has no jurisdiction except where there is a suit pending.
The question of the jurisdiction of the Court of Chancery was finally examined in England, in the case of Wellesley v. Wellesley (2 Bligh [N. S.], 130) by the House of Lords, and the conclusion there was, that such jurisdiction was received by the court as a part of the great seal, and as representing the king as parens patria1,.
A proceeding which begins as one by habeas corpus does not lose that character during its pendency, and. it must be carried on in conformity with the rules, laid down by the Legislature governing the procedure of the court in such cases. (People ex rel. Barry v. Mercein, 8 Paige, 47 ; Mercein v. People ex rel. Barry, 25 Wend. 64; People v. Chegaray, 18 id. 637.)
The statute says that the writ must be returned, and immediately after the return of the writ the court must examine into the facts alleged in the return. (Code, § 2031.) It says further that the person produced upon the return of the writ, may, under oath, deny any material allegation of the return or make any allegation of fact showing that his detention is unlawful or that he is entitled to his' discharge. (§ 2039.) Proceedings in these cases are not governed by the strict rules of pleading which are applicable to civil actions. They are summary in their nature, and the only requirement is that there shall be presented to the court or judge some facts or allegations in such a way that he may know that the allegations of the. return are denied. The statute does not say that such denials or allegations must be by way of formal traverse although as matter of practice they are made by a traverse to the return, but they may be made by affidavit, or they may even be made orally. The statute does not prescribe any manner,in which the return shall be denied. The question was presented to the Supreme Court under the Revised Statutes, the provisions of which are substantially like those of the Code of Civil Procedure, and it was held that the denial might be made not only by traverse but by affidavit; and such a denial was received in the case of People v. Chegaray (18 Wend. 637, 641), [418]*418.where the. question was thoroughly. discussed' whether denials by affidavit might or might not be permitted. In that case Judge -Bkonson, delivering the opinion of the court, said that affidavits not only of the relator but of other people would be received for the purpose of denying the return, and such affidavits were considered in disposing of the case.
It is claimed, however, that the action of the Superior Court upon the former writ of habeas corpus in. disposing of the custody of these children was an adjudication. To a certain extent that is undoubtedly the case. But it operates as an adjudication only upon the condition of affairs which existed at the time the former writ was sued out, which it appears was nearly three years before the issuing of the' present one. Upon the issue of a new writ in another proceeding for the custody of the children the relator is always at liberty to show that a new condition of things has arisen whereby the custody which was refused to him by the former writ could properly be granted to him at the time of the issue of the new writ. (People ex rel. Barry v. Mercein, 3 Hill, 399.) Indeed, in that case it was held that the presumption that the adjudication had lost its force might, arise simply by lapse of time without any new allegations. That is probably not the case here. It was probably necessary in this case for the relator to make some allegations with regard to his fitness or to the unfitness of ■ Mr. Moss, the grandfather of the children, in whose care and custody they were, which would require the court to examine into the case de novo,
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Rumsey, J.:
This is a proceeding to determine the right to the custody of the two children of the relator. It was commenced by habeas corpus. A return was made which set up a former adjudication on the subject, made by the Superior Court some three years before the present proceeding was begun. To that return a traverse was filed, and some further proceedings were had which will he referred to subsequently. Thereupon the order appealed from was made, which was, substantially, that the matter was referred to a referee, with directions to take the testimony and report the same to. the judge who made the order.
The first question presented is, whether the order is an appealable one. An examination of that question requires an investigation into the nature of the proceeding. The proceeding in its com[416]*416mencement was by habeas corpus. It was begun by the service of a petition and the issue of a writ as prescribed by the Code of Civil Procedure," and thus far it has proceeded, in all respects, under the provisions of that statute. It has been claimed that the proceeding, in its nature, is not one of habeas corpus, but that the writ- of habeas corpus, having exercised its function by bringing the children, whose detention was being inquired into, before the court, has become functus officio, and that, thereafter, the proceeding is one upon the equity side of the court, not governed by any particular statute. This view, we think, cannot be maintained. The nature of this proceeding for the custody of children has been examined many times. It has been settled law in this State and in England that there is no other proceeding at common law to inquire into the custody of children than that by habeas corpus. The matter was the subject of investigation in The People ex rel. Barry v. Mercein (8 Paige, 47, 55), where a. writ of habeas corpus was sued out before the chancellor. It became necessary for the chancellor, in that case, in determining the question as to what were his powers, with reference to the disposition of the child, to examine into the nature of the proceeding before him. He clearly states that the proceeding is before him only by virtue of his common-law powers as chancellor, and is not one pending upon the equity side of the court. These views were reiterated by him subsequently, when the same question came up between the same parties upon another writ of habeas corpus in Mercein v. People ex rel. Barry (25 Wend. 95). In each of these cases the chancellor evidently desired to find some way in which it would be practicable for him to decide the case presented, upon the rules laid down by the court of equity with regard to the custody df children, but he was prevented from doing so because he was bound by the rules prescribed in such cases in habeas corpus proceedings. The only question which the chancellor made in either .case was, whether or not the court was at liberty to proceed under the common-law system of procedure, or was bound to proceed according to the rules, laid down by the Revised Statutes.
An examination of .the cases will show that the English Court of Chancery only claimed the right to inquire into the custody of children by virtue of the delegated power from the crown as pa/rens patriae, and not- by virtue of any other common-law jurisdiction. [417]*417(DeManneville v. DeManneville, 10 Ves. 63; Butler v. Freeman, Ámbl. 302; Snell’s Principles of Equity, 347.) In Butler v. Freeman (supra) Lord Habdwicke, in examining into the source of the jurisdiction of the Court of Chancery, lays down the rule as above stated, and says that even then the court has no jurisdiction except where there is a suit pending.
The question of the jurisdiction of the Court of Chancery was finally examined in England, in the case of Wellesley v. Wellesley (2 Bligh [N. S.], 130) by the House of Lords, and the conclusion there was, that such jurisdiction was received by the court as a part of the great seal, and as representing the king as parens patria1,.
A proceeding which begins as one by habeas corpus does not lose that character during its pendency, and. it must be carried on in conformity with the rules, laid down by the Legislature governing the procedure of the court in such cases. (People ex rel. Barry v. Mercein, 8 Paige, 47 ; Mercein v. People ex rel. Barry, 25 Wend. 64; People v. Chegaray, 18 id. 637.)
The statute says that the writ must be returned, and immediately after the return of the writ the court must examine into the facts alleged in the return. (Code, § 2031.) It says further that the person produced upon the return of the writ, may, under oath, deny any material allegation of the return or make any allegation of fact showing that his detention is unlawful or that he is entitled to his' discharge. (§ 2039.) Proceedings in these cases are not governed by the strict rules of pleading which are applicable to civil actions. They are summary in their nature, and the only requirement is that there shall be presented to the court or judge some facts or allegations in such a way that he may know that the allegations of the. return are denied. The statute does not say that such denials or allegations must be by way of formal traverse although as matter of practice they are made by a traverse to the return, but they may be made by affidavit, or they may even be made orally. The statute does not prescribe any manner,in which the return shall be denied. The question was presented to the Supreme Court under the Revised Statutes, the provisions of which are substantially like those of the Code of Civil Procedure, and it was held that the denial might be made not only by traverse but by affidavit; and such a denial was received in the case of People v. Chegaray (18 Wend. 637, 641), [418]*418.where the. question was thoroughly. discussed' whether denials by affidavit might or might not be permitted. In that case Judge -Bkonson, delivering the opinion of the court, said that affidavits not only of the relator but of other people would be received for the purpose of denying the return, and such affidavits were considered in disposing of the case.
It is claimed, however, that the action of the Superior Court upon the former writ of habeas corpus in. disposing of the custody of these children was an adjudication. To a certain extent that is undoubtedly the case. But it operates as an adjudication only upon the condition of affairs which existed at the time the former writ was sued out, which it appears was nearly three years before the issuing of the' present one. Upon the issue of a new writ in another proceeding for the custody of the children the relator is always at liberty to show that a new condition of things has arisen whereby the custody which was refused to him by the former writ could properly be granted to him at the time of the issue of the new writ. (People ex rel. Barry v. Mercein, 3 Hill, 399.) Indeed, in that case it was held that the presumption that the adjudication had lost its force might, arise simply by lapse of time without any new allegations. That is probably not the case here. It was probably necessary in this case for the relator to make some allegations with regard to his fitness or to the unfitness of ■ Mr. Moss, the grandfather of the children, in whose care and custody they were, which would require the court to examine into the case de novo, and judge whether or not, under present conditions, it was proper to award to him the custody of these children. Did he make any such allegations ? So far as the traverse goes the relator alleges that Mr. Moss is now unfit to have and retain the custody of the children, and he denies the allegation set forth in the return, that he himself is, unfit." It seems to us that these allegations "of themselves were sufficient to raise the issue. But if they were not, the issue might have been raised by affidavit, and it appears that nearly twenty affidavits were read for the express purpose of showing whether or not this relator was a proper person to have the custody of these children. What the allegations in these affidavits were We are not permitted to know, because the appellant has not seen fit to bring them before us. All that we know on the subject is that it. was stated by the court that the situation had changed since the last pro[419]*419ceeding, and that affidavits were produced for the purpose of showing that fact. If, having heen produced, they did tend to show that fact, there was an issue upon which the court was required to pass, and with regard to which it was proper for the court to take evidence to enable it to pass understandingly.
We have here, then, a proceeding summary in its nature, in which formal pleadings are not required, and upon which it was stated by the court that an issue had been made to arise, where papers were presented for the purpose of showing that there was such an issue, and upon which papers the court, conceiving that such an issue had been raised, made an order that proof should be taken to enable it to determine it. Oan it be said, without advising us of the nature of the affidavits which were produced, and upon which an issue was raised, that there was nothing before the court to permit or authorize such action to be taken ? There is certainly no presumption of errors but the contrary. And unless all the papers upon which the court acted are before us, it is not possible for us to see that it proceeded erroneously in this matter. For that reason alone it was proper, in view of the necessity which had been made to arise, that further information should be given to the court, for an order of reference to be made to obtain that information upon which the court might act intelligently, and for that reason alone, and going no further, this appeal should be dismissed.
But there is another reason which makes it absolutely compulsory upon us to dismiss this appeal. As this proceeding is by habeas corpus and is governed by the rules laid down by the Code, it must, proceed in all respects as is provided by that statute. The Code says, in so many words, that an appeal may be taken in these proceedings from an order refusing to grant the writ, or from a final order made on the return of the writ to discharge or remand the prisoner, or to dismiss the proceedings. It says further, that an appeal does not lie from an order of the court before which the writ is made returnable, except as provided in this section (§ 2058).
For this reason, as the law has expressly taken away the right to appeal from incidental orders of this kind in these proceedings, the appeal must be dismissed.
Patterson and Williams, JJ., concurred; Barrett and Ingraham, JJ., dissented.